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Anderson v. Bill Morris Construction Co.10/30/1998
Appeal from the Workers Compensation Board.
Appeal dismissed.
This workers compensation case involves an appeal by Bill Morris Construction Co., Inc., (Morris Construction) and Fireman's Fund Insurance Company (Fireman's Fund) from a decision of the Workers Compensation Board (Board) dismissing their application for review as untimely. On appeal, they contend that the 10-day deadline under K.S.A. 1996 Supp. 44-551(b)(1) and K.A.R. 51-18-2 should be extended based on K.S.A. 77-613(e) and K.S.A. 60-205(b). In the alternative, they argue that the deadline should be extended based on excusable neglect. We disagree and affirm.
The administrative law Judge (ALJ) rendered an order in favor of the injured worker on January 31, 1997, after conducting a preliminary hearing on January 29, 1997. Because of a mistake involving the current address of Morris Construction and Fireman's Fund's attorney, their attorney did not become aware of the order until February 24, 1997. The Board noted that the ALJ's order was issued on January 31, 1997, and that the application for review was not filed until February 24, 1997. Finding that more than 10 days had elapsed between those two dates, excluding Saturdays, Sundays, and legal holidays, the Board determined that the application for review was untimely.
The sole issue in this case is whether the Board correctly determined that Morris Construction and Fireman's Fund's application for review was untimely filed. This issue requires that we construe relevant statutes, which is a question of law upon which our appellate review is unlimited. Jones v. Continental Can Co., 260 Kan. 547, 550, 920 P.2d 939 (1996).
The Board maintained that K.S.A. 1996 Supp. 44-551(b)(1) and K.A.R. 51-18-2 provide a 10-day period for filing an application for review of a workers compensation award. K.S.A. 1996 Supp. 44-551(b)(1) provides for Board review of ALJ decisions as follows: "All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law Judge shall be subject to review by the board upon written request of any interested party within 10 days." K.A.R. 51-18-2 explains that the effective date of the ALJ's actions shall begin the day after the date in the ALJ's order.
In applying this statute and regulation, the Board claimed that the time period began running on February 1, 1997, and ended on February 14, 1997, excluding Saturdays, Sundays, and legal holidays. In addition, the Board applied K.S.A. 60-206(a) and McIntyre v. A.L. Abercrombie, Inc., 23 Kan. App. 2d 204, 929 P.2d 1386 (1996), in arriving at this computation.
On the other hand, Morris Construction and Fireman's Fund argue that because the ALJ's order was not mailed to the last known address of their attorney, the 10-day time limit under K.S.A. 1996 Supp. 44-551(b)(1) did not begin to run until their attorney had received actual notice of the order, which was February 24, 1997. They cite K.S.A. 77-613(e), K.S.A. 60-205(b), and K.S.A. 60-2103(a) in support of their argument. These statutes deal with service of pleadings and other papers and excusable neglect.
Service
K.S.A. 77-613(e) states:
"Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses." (Emphasis added.) K.S.A. 60-205(b)(2) also states that service may be made by "mailing it to the attorney or a party at the last known address."
Nevertheless, the fact that K.S.A. 77-613(e) and K.S.A. 60-205(b)(2) requi
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